Van Pelt v. Home Building & Loan Ass'n , 87 Ga. 370 ( 1891 )

Bleckley, Chief Justice.

1. The exceptions to the auditor’s report were overruled on March 25th. No exception was entered pendente lite. On April 1st thereafter, the case came on for final hearing and trial, and the trial terminated on that day in a final judgment for the plaintiff below. The bill of exceptions was certified on the 31st of May, which was within sixty days after the trial and judgment, but was more than sixty days after the exceptions to the auditor’s report were overruled. The bill of exceptions was too late to reach any alleged error committed by the court in overruling the exceptions. In order to preserve the right to have that decision reviewed, it was necessary that exceptions should have been entered pendente lite, under section 4250 of the code. City of Waycross v. Youmans, 85 Ga. 708. The longest time allowed by the statute for signing a bill of exceptions is sixty days from the date of the decision complained of. Code, §4252.

2. The court erred in striking the amended pleas filed by the defendant below on the day of the trial. If the facts set forth in these pleas be true, the association was virtually dissolved pending the suit. It not only had transferred and assigned in writing the subject-matter of the present action, but had virtually gone out of existence. If it had paid off and satisfied all its stockholders and ceased to transact business, it was incapable of further prosecuting a pending action founded upon a bond which it transferred and assigned after the action, was brought. It might admit of some question, indeed very considerable question under the authorities, whether it could proceed to recover on a cause of action after parting with title both legal and equitable, although it had not parted with its own legal existence as well. Rut we are clear that, taking the matter of these pleas as true, the association could not prosecute this action or any other. Judgment reversed.